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Sunday, 11 October 2015

Whether it is necessary to frame charge for substantive offence?

A charge for a substantive offence needs to be framed quoting the provisions of section of I.P.C. This aspect has been dealt with in a case of Nanak Chand v. The State of Punjab, Supreme Court Reports 1201.

Bombay High Court

Samadhan Baburao Khakare And Ors. vs The State Of Maharashtra And Ors. on 3 March, 1995

Equivalent citations: 1996 (1) BomCR 1, (1995) 97 BOMLR 759

Bench: B Wahane

1. The appellants Samadhan Baburao Khakare, and Govinda Jagadeo Gaikwad (original accused Nos. 1 and 12 respectively) challenged their conviction and sentence passed by the Addl. Sessions Judge, Buldhana vide Judgment and order dated 28th January, 1992, for the offence punishable under section 324 read with 34 of Indian Penal Code, for causing injuries to Dharma Sitaram Dode (P.W. 12) and Tukaram Totaram, sentencing both the appellants to suffer R.I. for one year and to pay a fine of Rs. 200/- each i/d to suffer further R.I. for 7 days.

2. Ukharda s/o Chandrabhan Dobe - the complainant being aggrieved by the Judgment and order of acquittal of the appellants/accused as also other accused in other offences and for enhancement of sentence of the appellants/accused, preferred the Revision Application No. 61 of 1992.

3. The instant Criminal Appeal and the Revision Application being arising out of the common Judgment, both are decided by the common Judgment.

4. Shri Mardikar, the learned Counsel for the appellant/accused raised the legal objections to the conviction and sentence which goes to the root of the case and thus maintained there is no need to go to the merits of the case.

The question raised is that the Addl. Sessions Judge, Buldhana, vide Exh. 43 framed charges against the 14 accused persons under sections 147, 148, 149 and 302 r/w 34 of I.P.C. As per the charge, all the 14 accused persons alongwith deceased Baburao Dattu Khakare and deceased accused Amruta Dipa Khakare, on 30th October, 1985 at about 8.30 a.m. at village Talkhed, in furtherance of their common intention formed unlawful assembly in prosecution of their common object to beat the complainant Rawaji Bimbaji Dobe and the witnesses Ukharda Chandrabhan, Suresh Rawaji, Namdeo Ninaji, Dharma Sitaram, Prabhakar Ukharda and others.

"Fourthly, on the same date, time and place you accused Nos. 1 to 14 alongwith the deceased Baburao Dattu Khakare and deceased Amruta Dipa Khakare, in furtherance of common intention, did commit murder by intentionally or knowingly causing the death of Prabhakar Ukharda Dode, and thereby committed an offence punishable under section 302 read with 34 of the Indian Penal Code."

5. It is not disputed that the appellants/accused are convicted for the offence punishable undersection 324 r/w 34 of Indian Penal Code. However, the learned Addl. Sessions Judge, neither framed the substantive charge under section 324 of I.P.C. against the appellants nor any substantive offence, if any, read with section 34 or 149 of the I.P.C. is framed. Therefore, Shri Mardikar, the learned Counsel for the appellants/accused very vehemently contended that no substantive charge having been framed under section 324 of the Indian Penal Code, the conviction and sentence awarded by the learned trial Court is illegal.

Chapter XVII of the Code of Criminal Procedure deals with the framing of charge/charges.Section 211 of the Code of Criminal Procedure contemplates that ;

"Every charge under this Code shall state the offence with which the accused is charged."

"Particulars as to time, place and person, of the alleged offence (if any) against whom, of the thing (if any) in respect of which, it was committed, the reasonable notice of the matter be given by incorporating all the charges".

"In the charge, the particulars of the manner in which the alleged offence was committed should be apprised to the accused."

6. The whole purpose and object of framing charges is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted is not brought out in the charge then the charge is not only defective but illegal. It is no doubt that when the accused is charged with a major offence, he can be convicted of a minor offence. It is true that what is major offence and what is minor offence is not defined. The gravity of offence must depend upon the severity of the punishment that can be inflicted, but the major and the minor offences must be cognate offences which have the main ingredients in common, and a man charged with one offence which is entirely of a different nature from the offence which is proved to have committed by him, cannot in the absence of a proper charge be convicted of that offence, merely on the ground that the facts proved constitute a minor offence. For example, a man charged with an offence of murder cannot be convicted for forgery or misappropriation of funds, or such offences which do not constitute offences against person, the reason being that the accused had no opportunity in such a case to make defence, which may have been open to him, if he had been charged with the offence for which he is to be convicted.

7. Admittedly, in the instant case, no charge is framed against the appellant/accused as an independent charge or with the aid of either section 34 or 149 of the I.P.C. alleging that they caused injuries to Dharma s/o Sitaram Dode (P.W. 12) and Tukaram Totaram (not examined). It is, thus, apparent that no opportunity was accorded to the appellants/accused to meet the charge and, therefore, pre-judice is caused to the appellant/accused.

In a case of Yusuf Sardar Niyamatulla Momin v. The State of Maharashtra, 1979 Bom.C.R. 125, brother Kotwal, J., held the conviction under section 323 of I.P.C. illegal as the charges were framed under section 395 read with section 397 of I.P.C. In that case the charge was framed under section 395 read with section 397 and the ingredients of the said charge is robbery and dacoity. The learned Judge disbelieved prosecution evidence. Therefore, from out of five accused, four were acquitted holding that no such incident occurred and, therefore, the charge for vicarious liability cannot be sustained. In other words, alleged act attributed to the present appellant, cannot be of any assistance. Section 323 envisages attempt to cause death or grievous hurt. Therefore, application of section 395 r/w 397 by necessary implication, the implication of vicarious liability is ruled out. The conviction under section 323 I.P.C. without specific charge is unsustainable in law.

8. In the instant case, the para 9 of the Judgment deals with the points for consideration. The point No. 4 reads as follows:

"Whether the prosecution has proved that the accused Nos. 1 to 14, in furtherance of common intention, committed murder by intentionally or knowingly causing the death of Prabhakar Ukharda Dobe."

Para 10 of the Judgment deals with the findings. In respect of point No. 4, the findings are as under:

"All these facts show that the accused were not at all the member of an unlawful assembly, but they had gathered at the spot later on. Under such circumstances, if at all any criminal act committed by any of the accused is in their individual capacity and not in prosecution of the common object of unlawful assembly. The accused party not being the aggressors no case either under section 147, 148 r/w 149 of I.P.C. is maintainable against them. Hence, I answer point Nos. 1 to 3 in the negative."

The learned trial Court after considering the evidence concluded in para 43 of the Judgment that ;

9. Sections 34 and 149 of the Indian Penal Code are merely explanatory. Both do not create any specific offence. Under section 34, there needs to be more than one but below five persons actuated by common intention and when in furtherance of that common intention a criminal act is done by them, each of them is liable for that act as if the act had been done by him alone. Similarly, to attract the provisions of section 149, an offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and the other members of the unlawful assembly to commit that offence provided the conditions laid down in section are fulfilled. Thus, if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.

A charge for a substantive offence needs to be framed quoting the provisions of section of I.P.C. This aspect has been dealt with in a case of Nanak Chand v. The State of Punjab, Supreme Court Reports 1201.

10. In the instant case, no substantive or independent charge was framed against either of the accused for causing any injuries by means of sharp pointed weapon to Dharma Sitaram Dode (P.W. 12) and Tukaram Totaram (not examined).

Conviction under sections 458 and 323 of I.P.C. is illegal, as the accused were charged for the offence under section 395 of I.P.C.

In a case of Bhupesh Deb Gupta (dead) by Lrs. v. State of Tripura, , Their Lordships observed that;

"As the basis of the charge is entirely different from what is sought to be made out now i.e. the gratification was paid to the accused for influencing a public servant, it cannot be said that the accused was not prejudiced by the frame of the charge. On a careful scrutiny of the facts of the case, the accused was prejudiced by the defect in the charge and that he had no opportunity to meet the case that is put forward against him."

11. Giving conscious thought to the facts and circumstances of this case as well in view of the mandatory provisions of apprising the accused of the case which he has to meet in the defence, not being followed in the instant case, the conviction and sentence passed by the learned trial Court is ipso facto illegal.

12. Besides this legal provisions, there is no iota of evidence against the appellants/accused that they caused injuries on the person of Dharma Sitaram Dode (P.W. 12) and Tukaram Totaram. Dharma Sitaram Dode (P.W. 12) did not state that the appellants/accused have caused injuries on his person. He simply stated that accused No. 2 Bhimrao had caught hold of him. There is no whisper against the appellant/accused No. 12 Govinda Gaikwad that he had played any role. Another injured Tukaram Totaram not being examined, there is no evidence. It is, thus, clear that there is no evidence at all against the appellants/accused that these two appellants had caused any injury on the person of Dharma Sitaram Dode (P.W. 12) and Tukaram Totaram.

13. The learned trial Court has also committed glaring mistake in not putting incriminating circumstances found which he has considered for conviction while putting questions undersection 313 of Cr.P.C. The questions and answers are stereo-type. The question Nos. 16, 17 and 18 put upto appellant/accused No. 1 and the appellant No. 2/original accused No. 12 are similar. No question was put to either of the accused to the effect that they caused injuries on the persons of Dharma Dode (P.W. 12) and Tukaram Totaram by means of axe. A question is to the effect that the accused Samadhan i.e. the appellant No. 1 had given blows on the head of Urkuda Chandrabhan with an axe and others beat Dharma Sitaram, Tukaram Namdeo and Suresh Savaji. Another question is to the effect that accused Samadhan and Bhimrao had caught hold Dharma Sitaram and accused No. 11 Kawadu had dealt an axe blow on his head. The question No. 18 is to the effect that accused No. 15 Balu Amruta had given blow with the stick on the back of Dharma Sitaram.

14. The object and purpose of illustrating the explanation under section 313 of Cr.P.C. is that the materials or points brought out in the prosecution evidence against accused be put to the accused, so that to accord him an opportunity to give his explanation. It is clear from the above discussion, the accused had no notice of the offence of which he was going to be convicted and was not asked to explain the points on which their conviction is based. On this aspect too, the conviction and sentence passed by the learned trial Court is liable to be set aside.

15. In the result, the Criminal Appeal No. 70 of 1992 is allowed. The conviction and sentence passed by the learned trial Court on 28-1-1992 in Sessions Case No. 33 of 1986 is quashed and set aside. The fine paid, if any, by the appellants/accused, be refunded to them. Bail bonds shall stands cancelled.

Smt. Sirpurkar, the learned Counsel for the applicant was heard. During her submissions, nothing has been brought to my notice that can be construed as the learned trial Court has committed any error in acquittal of other accused and thereby pre-judice is caused to the complainant and thereby the case is made out for re-trial. The State has not preferred appeal against the acquittal as also for enhancement of the sentence. There being no substance in the Criminal Revision Application No. 61 of 1992, the same is dismissed.